62 F. 796 -

62 F1d 796

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Case Text

796

FEDERAL REPORTER,

vol. 62.

or supposed:,rights, is necessarily Inlended to inft.ict injury upon others, and must be condemned by all rightminded people as 'an intentional wrong. By joining in a strike undel'''lt1J,ch conditions and for such purpose, these have ablilolved.their employers from all obligations to accord them any preference right to employment over others, by reason of their past They are receiving fair treatment by being placed upon the waiting list.
,SOUTHERN OALIFORNIAltY. 00.

v. RUTHERFORD et aL

JUILe

\

(Circuit

Court,

S. D·. Oall:tornia.

30, 1894.)

1B.Tll'B<l'1'ION......PERFOlULUicB·OF DuTY :BY EMPLOYES.

Where. employi3s ot a railroad though remaining In its employ'refuse to thelr.dutles of its trains. so long as PU1lmancars arellaU1¢d" though the company is bound br contract to 'carry 'them, thus iilterruptlng interliltate commerce and. the transmission of, UULlls, and subjecting the company to suits a.nd great and irreparable damage, injunction. will Issue them to perform their duties duriIlg their continuance lD the compants employment.

Suit by the Southern California Railway Company, a corporation of the state of' California, against O. O. Rutherford and othera for infunctitm. :W. J ·. Hunsaker, for complainant.

ROSS, District Judge. Time does not admit of an extended statement facts of the case or of the reasons for awarding the injunction. applied for! The bill shQws, among other things, that the comp13.1nant railwaYcQmpany is one link in a through line of road exten4ingfrom National City, san Diego county, Cal., to the city of Chicago" in the state of TIlinois, engaged in the transportation, interstate commerce and the mails of the among other things, United States; its connecting roads being the Atlantic & Pacific and the Atchison, Topeka & Santa Railroad Companies. That there isa valid existing contract between the complainant company and its connecting companies and the Pullman Palace Car Company lJY which all regular passenger trains running over the said line of roa.d, including that of the complainant, carrying the mail and passengers, shall carry Pullman cars. That the defendanta jtre in the employ of i;he complainant company, and were employed .byit to, amo:Jigother things, handle and operate its trains so engaged in carrying the Untted States mail .and passengers and,freight National. City, Cal., and Chicago, TIl., and to and frPJP intermediate points, and from the time of their employment up to the time of the commission of the acts complained of by the compll;linant were duly accustomed to handle and operate such trains, inclUding Pullman cars. That subsequently the defendants, although remaining in the employment of the complainant company, refused, and still refuse, to handle or operate any train of cara of the complainant company to which a Pullman car is attached; and because of the discharge by the receivers in pos-

SOUTHERN CALIFORNIA RY. CO. V. RUTHERl<'ORD.

797

session and control of the Atchison, Topeka & Santa Fe Railroad Company of certain employes of theirs for refusing to handle or operate any train of that road to which a Pullman car is attached, the defendants to the present bill, while remaining in the employment of the complainant company, refused, and still refuse, to handle or operate any of the trains of the complainant company engaged in carrying the mail of the United States and in the aforesaid interstate commerce, which their regular and accustomed. duties as such employes required, and still require, them to operate and handle. Undoubtedly, in the absence of a valid eXisting contract obligating the defendants to remain in the employment of the complainant company, they would ordinarily ·have the legal right to quit the employment and cease work at anytime. But the bill alleges that the defendants continue in the employment of the complainant company, and yet refuse to perform their regular and accustomed duties as such employes; and it further shows that such refusal subjects and will continue to subject the complainant to a multiplicity of suits and to great and irreparable damage, in that there is an existing valid contract requiring complainant to attach a Pullman car or cars on all of its through trains for the carriage of passengers and the mail, and also retards and interrupts the complainant in the transmission of the United States mail and the interstate commerce aforesaid. It is manifest that for this state of affairs the law-neither civil nor criminal-affords an adequate remedy. But the proud boast of equity is, "Ubi jus, ibi remedium." It is the maxim which forms the root of all equitable decisions. Why should not men who remain in the employment of another perform the duties they contract and engage to perform? It is certainly just and right that they should do so, or else quit the employment. And where the direct result of such refusal works irreparable damage to the employer, and at the same time interferes with the transmission of the mail and with commerce between the states, equity, I think, will compel them to perform the duties pertaining to the employment so long as they continue in it. If I unlawfully obstruct by a dam a stream of flowing water, equity, at the suit of the party injured, will compel me by injunction, mandatory in character, to remove the dam,and, prohibitory in character, from further interfering with the flow of the stream; and if I unlawfully erect a wall shutting out the light from another, equity will compel me to tear it down, and to refrain from further interference with the other's rights. It is true that such cases are not precisely like the present one, yet the principle upon which the court proceeds in such cases is not substantially different. And if it be said that there is no exact precedent for the awarding of an injunction in the present case, I respond, in the language of the court in the case of Toledo, etc., Ry. Co. v. Pennsyl. vania Co., 54: Fed. 751:
"Every just order or rule known to equity courts was born 0:1' some emergency, to meet some new conditions, and was therefore, in its time, without precedent. I:f' based on sound principles, and beneficent results follow their enforcement, affording necessary relief to the one party without imposing

thei'ights of, ;the public iin ia case. of' this sort should be ·eoDiiderM. "Railroads," :said)tb.e,lilupreme court in lllhe, case of Joy lit. iSt.,; Louis, 138 U. S;; 50, '11).' 'Sup.' rCti' '243, "are common carriers, to thepublic.:The rights of thepublie..in respect tQl,these great' highways.of :commupication should be fostered by ,thercOO1fta; and it.1s one ofitb.e most uSeful functions: .of a court of -equity that its methods of prOOedure:are"capable of being made such asio!8poommodate to the. development of.:the interests of,tl1.elpliblic, in the progress of ttalle and methods of; in1:erooll-rse· and! transp0l'tation." . ;, :,Fol,Uhe reasons th.s: hastily a.nd briefly stated, I shaH award an injunction requiring:thedefendan'ts to perform all of. their regular and'8cculiltomed duties so long as they remain inthe employment -of the'1eODiplainant oompany; which injunction, it may be as well to strmtlyandrigidly 'enforced.
!

Ie ,,:Moreov:er,

r

,

UNITED STATES v.CLYNE.. et al. SAME v. BUCHANAN et al.

(Nos. MO. 641.)

(Nos. 642, 643.) July lB, ;1.894.)

,

.(Districtdoiiii, S" p.' Oalifornil,l.

,Un,derPen. Coqe'Gl,tl.. for. the setting of an in(ftctmellt on a groun'd. whicH ,w()uld ba.ve been good for challenge to a ."grand juror, and section 896, as ground for challenge to a grand '! ijurOl'I,astate of mind which -will preventbiill from MUng impartially and a granq juror. who, joiD,ed in an of strikers fo,r,pbatructioll of mall.l1J1d comlll£l!;oo. tJ10ugh he indicated sympathY>yith 'wlll not be to have 'tie en, prejudiced, because thereafter,on oc'casion of stri]{ersdestrdying private property, he said they ought to be' shot.' ;T, ,

OF GRAND JUROR.

W:,:fl.{Jlune, q.T, ',Buohanan, a;ndothf1rs move to set aside inQictll:lCAts against them for mail and commerce. De. "GeoItge J.Denis, U. RAtty. O. 0.' Stephens and Byron Waters, for defendants.
BOSS; District Judge.' The grand jury which returned the indictments ipthese cases was impaneled prior to the commission of the offeuseswhich constitute'the subject oithe indictments, so that the 'defendants could not have been held to answer for 'the alleged of,renses.prior to the impaneling of the jury. The question which they seek to raise by the motions to quash the indictments is a challenge to the personnel of the grand jury. There are-riopl'ovisions of the Un,ited. Stl;ltee regulating challenges ,t9, sU,ch jurors under spcb circumstallces, and it is therefore proper. for the federal court to follow the practice of the courts of the state in which it is held with reference to such objections. U. 13.'1. Egan, 30 Fed. 608. A